MARTIN RIMM AND THE ANTIPORN ACTIVISTS By Mike Godwin Nov. 19, 1995 Main article: About 3700 words Sidebar, "The Obscenity Footnote": About 1000 words It was on a Monday -- July 26, 1995, to be precise -- that Sen. Charles Grassley (R-Iowa) took the podium on the floor of the Senate to denounce "computerized pornography" and to praise the just-released "study" of such pornography from "researchers at Carnegie Mellon University." While it was immediately clear that Grassley had captured the zeitgeist about so-called "cyberporn," it was less than clear at the time that Grassley's anti-cyberporn crusade had its roots in the efforts of antiporn groups. While there is still no smoking gun linking the "Carnegie Mellon study" and the antiporn activists, there is, at the very least, a bloody glove or two. We now know that Martin Rimm, author of the now-infamous "study" had help in crafting and placing the law-review article that caused all the fuss. And we now have a good idea as to who gave him the help -- there are numerous links between Rimm and antiporn groups that strongly suggest a team effort to create the perception or a pornography problem on "the information superhighway." Of course, Grassley's speech that Monday was hardly an opening move: Grassley had introduced legislation earlier in the summer that was aimed at regulating so-called "cyberporn." But what Grassley insisted on calling "the Carnegie Mellon study" was now being hyped on the cover of Time's July 3 issue -- on the streets just that morning -- and the senator simply had to seize this golden opportunity to surf the wave of nervousness about the Net. In his speech, duly recorded by the Congressional Record, Grassley took pains to establish that the "study" had the provenance of neutral, scholarly research: "Mr. President, Georgetown University Law School has released a remarkable study conducted by researchers at Carnegie Mellon University. This study raises important questions about the availability and the nature of cyberporn. It is this article I ask to have printed in the Record. [In fact, it was the Time article, not the study itself, that was included in the Record.] "Later on, on this subject, sometime during the middle of July, I will be conducting hearings before the full Judiciary Committee to fully and completely explore these issues. In the meantime, I want to refer to the Carnegie Mellon study, and I want to emphasize that this is Carnegie Mellon University. This is not a study done by some religious organization analyzing pornography that might be on computer networks." That last comment is a fascinating one, in that it demonstrates Grassley's own awareness that the "study" must not be perceived as being driven by an antiporn agenda, even though it clearly functioned to advance that agenda. But the links between Rimm, his "study," and the antiporn activists put the lie to any claim of scholarly neutrality. Which activists are we talking about, precisely? Primarily the three antiporn organizations that share a single office suite (and voice and fax telephone numbers) in Fairfax, Virginia: 1) _The National Coalition for the Protection of Children and Families._ Formerly the National Coalition Against Pornography, this organization renamed itself last year, perhaps in anticipation of its legislative compaign against online "indecency" (a broader category than pornography). 2) _The National Law Center for Children and Families._ This orgnization was formerly headed by antiporn activist Cathy Cleaver -- it is now headed by Bruce Taylor, formerly a prosecutor specializing in obscenity cases and formerly the general counsel of a an antiporn group based in Phoenix, Arizona, and founded under the name "Citizens for Decency through Law." The organization was founded by Charles Keating, himself a veteran of the Attorney General's Commission on Pornography (a.k.a. the Meese Commission). 3) _Enough is Enough!_ Presenting itself as a secular effort, this organization provides a platform for former party girl and ex-No Excuses-jeans model Donna Rice-Hughes, who has leveraged her fame from the Gary Hart candidacy into a career as an antiporn activist. The depth of the Rimm/antiporn-group connection has not been clear until recently. After several months of investigation, however, it seems certain that Rimm had the assistance of the above-named groups. Which is to say this: at the same time Rimm, himself no fundamentalist, was using the antiporn activists to contrive a place for himself on the national stage, the antiporn groups were using Rimm to manufacture a case for the proposition that "cyberporn" was out of control and needed to be regulated. Rimm's own agenda cannot be said to be congruent with that of the antiporn crowd -- even if one dismisses his claims to oppose censorship (I don't, although I think they're tangential when it comes to understanding Rimm), it is indisputable that Rimm is positively enthusiastic about pornography. One can't miss the sheer delectation with which he quotes the descriptions of pornographic images marketed on the adult-oriented Amateur Action BBS, or the barely concealed delight with which he used terms like "necrophilia" and "vaginal and rectal fisting" on ABC's "Nightline." At first glance, Rimm -- whose love of pornography is obvious even when he pretends to decry it, and who turns out to have a track record of publicity-generating scams -- seems an unlikely ally for the religious right antiporn activists. But just as these antiporn groups, normally rather hostile to feminism, did not hesitate to make common cause with radical feminist Catharine MacKinnon (who opposes pornography for rather different reasons than the religious right does), they quickly saw in Marty Rimm's study an incredible opportunity to cast their "cyberporn" agenda into law. It's worth noting that Rimm also forged an alliance with MacKinnon. Rimm has claimed that it was his personal urging that led MacKinnon write a companion piece for the Georgetown Law Journal, praising Rimm's "study." More recently, MacKinnon has compared Rimm's subsequent disgrace, and the exposure of his "study" as a fraud, to McCarthyism, arguing that it was orchestrated by a pro-pornography "power bloc." MacKinnon declined to be interviewed for this article. Figuring out the connection between Rimm and the antiporn gang is like assembling a mosaic from very numerous and very tiny pieces. Still, the whole picture begins to come together once one notes certain interesting facts--facts whose timetable tests one's belief in coincidence: --> Throughout the late spring and the summer of 1994, Rimm publicizesd his "study" of pornographic imagery in a number of Usenet discussion forums -- notably soc.feminism, where his postings were certain to be seen by net-savvy antiporn activists. (Pornography is a perennial topic in that moderated newsgroup.) In April, Rimm joined the California-based Amateur Action BBS, whose proprietors, Robert and Carleen Thomas, are under federal indictment in Memphis, Tennessee, on obscenity charges. The Thomases are convicted in July. Rimm never reveals to the Thomases that he is planning to publish a study that relies heavily on data gathered from their BBS. --> In the September 12, 1994, issue of Christianity Today magazine, Deen Kaplan, then of the National Coalition Against Pornography (NCAP), telegraphs the religious right's legislative goal (as well as its rhetorical tack) of putting the nation's computer forums and networks under the same regulatory regime as television : "We need to look at [computer networks] more in terms of a broadcast medium and some of the careful restrictions that go into that to protect children." This is precisely the legislative strategy embodied in the respective cyberporn bills of Senator Jim Exon (D-Nebraska) and Sen. Charles Grassley -- each was aimed at online "indecency," a term used primarily in broadcasting regulation. --> That same month, Rimm takes a giant step toward gaining larger public awareness of his "study" -- he contacts Carnegie Mellon University president Robert Mehrabian and informs him that, in the course of his research he has discovered that images that a jury found to be legally obscene in the Amateur Action BBS trial can also be found on Carnegie Mellon's computers as Usenet postings. This revelation is ultimately used to justify a ham-handed censorship effort at CMU -- a plan to remove all sexually oriented Usenet newsgroups, including discussion forums, from CMU computers. The announcement in late October of the censorship plan triggers a vigorous public debate, first in CMU's local newsgroups (known as "bboards") and then in several much larger, distributed forums that are part of Usenet. Rimm occasionally contributes to the debate, primarily to distance himself from CMU's actions and from any blame for triggering them. The thrust of his defense is twofold: 1) that his study is a legitimate scholarly product of the work of many individuals, and 2) that he opposes censorship. Both themes would resurface the next year when Rimm's "study" would be cited by antiporn activists -- it seems clear in retrospect that Rimm hoped both to inoculate himself against criticism from anticensorship forces and to buttress the perception of the study as politically neutral effort , thus enhancing its subsequent value to the antiporn groups. (Remember how Sen. Grassley stressed that the study was from "Carnegie Mellon University" and "not a study done by some religious organization"?) --> On November 5, 1994, Rimm posted a message in a public Usenet newsgroup that included the following response to Carl Kadie, a civil-liberties watchdog who specializes in academic-freedom issues relating to computer communications: 'You're a good guy, Carl. I'm the principle [sic] investigator of the study, "Marketing Pornography on the Information Superhighway." It is being refereed and had the assistance of a lawyer who has argued obscenity cases before the Supreme Court.' --> Footnote 93 of Rimm's Georgetown Law Journal article includes the following text: 'Another competing vision consists of a revised version of the Miller standard. Instead of using community standards, the proponents of the revised Miller standard advocate the creation of a per se list of sexual activities which are automatically and irrevocably deemed obscene. See Bruce A. Taylor, A Proposal for a Per Se Standard, 21 U.Mich. J.L. Ref. 255 (1987-88).' --> The Bruce Taylor article appears in the same volume of the U. of Mich. Journal of Law Reform that includes the Dietz-Sears study, upon which Rimm based his own study (see, e.g., Rimm footnotes 15 and 56). The co-authors of that study, Park Dietz and Alan Sears, were both members of the Meese Commission. --> After ordering a copy of that volume of the Journal of Law Reform, I discovered the following language in footnote 13 of the Bruce Taylor article (in which Taylor also boasts of his 15 years of experience in prosecuting obscenity): "In all, this author has tried over 65 obscenity jury cases in several states and has argued over 50 appeals before the Ohio Court of Appeals, the Ohio and Colorado Supreme Courts, United States Courts of Appeals for the Sixth and Ninth Circuits, and the United States Supreme Court." This raises to two the number of lawyers Rimm is known to have had direct or indirect contact with who had argued obscenity cases before the Supreme Court. (The other is Catharine MacKinnon.) --> Bruce Taylor is currently heading the National Law Center for Children and Families. This means he *currently* shares a Fairfax, Va., suite of offices with H. Deen Kaplan. --> Kaplan, as has been widely known since early last summer is a) a third-year law student at Georgetown, b) a vice president of the National Coalition for Children and Families (formerly the National Coalition Against Pornography, aka NCAP), and c) a member of the Georgetown Law Journal staff throughout last year, when Rimm's article was selected for publication, and currently on the journal's articles-selection committee. --> Bruce Taylor's organization, the National Law Center, formerly employed John McMickle, who is now on the staff of Sen. Chuck Grassley and who was the author of Grassley's net.indecency legislation. McMickle, who, according to Danny Weitzner of the Center for Democracy and Technology, is known to be a protege of Taylor's, was the person who had advance knowledge of Rimm's study (this is clear from a letter McMickle to university administrators at Rimm's alma mater, Carnegie Mellon, in early November of last year), and who later planned to call Rimm as a witness to Grassley's Senate hearing. A year ago at this time, McMickle was sharing offices with Deen Kaplan in Fairfax, VA. The various antiporn groups at that suite (The National Law Center, the National Coalition, and Donna Rice-Hughes's group, "Enough is Enough!") apparently prefer to office only with likeminded individuals. It seems reasonable to assume they shared advance knowledge of Rimm's study. --> Deen Kaplan is known to have provided Sen. Jim Exon with the "blue book" of online porn that the Senator brandished on the Senate floor. --> Sen. *Grassley's* indecency legislation was introduced on June 6 of this year, at approximately the time the issue of the Georgetown Law Journal was originally set to be published. Hearings on the Grassley legislation were set for July 24. Coincidentally, perhaps, that was four weeks to the day after Time's "Cyberporn" cover story hit the streets. Or perhaps it wasn't purely coincidental -- Rimm seems to have known in March that his study would be featured in a Time cover story. --> Increasingly during the spring of 1995, Rimm expressed concern to many people that his article might be perceived as anti-porn, and he redoubled his efforts to get his legal footnotes approved by civil-libertarian lawyers, including me, Danny Weitzner of Center for Democracy and Technology, and Stephen Bates, then an Annenberg Fellow. --> Perhaps in the knowledge that the source of help on the legal footnotes could result in his study's being branded as a political, antiporn document, Rimm stressed the following in his request to me in April: "In the meantime, we would greatly appreciate an independent check of our legal notes, which the journal helped us with. (No one on our team is a lawyer)." --> In the December, 1994, version of the study, which had undergone no editing by any of the law journal staff, we see the following text in footnote 53: 'The second of the competing visions consists of a revised version of the Miller standard. Instead of using community standards, the proponents of the revised Miller standard advocate the creation of a per se list of sexual activities which are automatically and irrevocably deemed obscene. Bruce Taylor, A Proposal for a Per Se Standard, _______ J.L. Ref. ______ (1988).' --> Except for minor changes, the sentences from footnote 53 in the December version are echoed in footnote 93 of the final version of the Rimm study. The main difference is that the citation for the Bruce Taylor article is not complete. The most reasonable inference from this fact is that the person who added that citation was *pulling it from memory*, and left blanks so that the cite checkers at the law journal would know to pull up the specifics. This is a strong indication that a) the drafter of this footnote was a lawyer or law student, b) the drafter knew what kinds of assistance law-journal staffs could be expected to provide, and c) the drafter was familiar with the antiporn movement's legal scholarship. Together with the citation format, it strongly suggests the likely background of the person who assisted Marty with his legal research: a lawyer or law student with a law-review background and an in-depth knowledge of anti-porn scholarship. --> In the biographical footnote to Taylor's law-review article, the author makes a point of thanking "Len Munsil, J.D. 1988, Arizona State University, who is clerking for CDL [Citizens for Decency through Law, the Phoenix-based antiporn organization then headed by Taylor], and who used his skills as editor of his university and law school newspapers to edit this work and conform its style to proper form." This is the same Len Munsil who is described by Christianity Today as an "antiporn activist," and who currently heads the Phoenix-based National Family Legal Foundation. Munsil recently cosigned a letter from former U.S. Attorney General Edwin Meese, the Christian Coalition's Ralph Reed, and others-- addressed to the Congressional conference committee that is now considering the House and Senate versions of the telecommunications-reform bill, the letter urges that the committee impose harsh penalties on providers who carry "indecent" content. But it is not Munsil's name that makes this Taylor footnote significant so much as what it communicates to the layman: namely, that "the proper form" of scholarly writing takes some special expertise, and that Taylor himself lacked that expertise. Ergo, if Martin Rimm, not a law student himself, received help in preparing the legal-scholarship component of his study, he probably didn't get it from Taylor. --> According to sources at the Georgetown Law Journal, the purported timetable for Rimm's and the law journal's interactions goes something like this: 11-18-94 -- Time article on the CMU censorship flap, written by Philip Elmer-DeWitt, becomes available on America OnLine. It is also available in the 11-21-94 issue, which may have been on the stands on 11-14-94. 11-14-94 to 12-5-94 -- In this 21-day interval, Meredith Kolsky, articles editor for the Georgetown Law Journal, reads about Rimm's study, gets a copy from Marty Rimm, suggests its publication to the Georgetown Law Journal staff, the GLJ meets and decides to accept the article, and Carlin Meyer is selected as a probable contributor. 12-5-94 Meredith Kolsky solicits Carlin Meyer's review of the Rimm article. 12-7-94 Kolsky thanks Meyer for agreeing to write a comment on the Rimm article and ships a copy of the then-current draft of the study to Meyer. It is from this draft -- the words "Copyright 1994" and "DO NOT CIRCULATE!!" appear prominently on the cover -- that I have taken the earlier version of Rimm's obscenity/child-porn legal footnote. Based on this breathtaking timetable (it's astonishing that the law-journal staff members physically survived the rapid acceleration of this editorial decisionmaking process), it's certain that Marty had legal assistance prior to the official formal submission article to the law journal. Who gave that assistance? At this point in the inquiry, the likeliest answers to this question appear to be: 1) That either Deen Kaplan (the Georgetown Law Journal staff member and antiporn activist), or Len Munsil (the antiporn activist who, as a law student, helped Bruce Taylor craft his law-review article and who would no doubt be able to recall it from memory) crafted the study is the source of Rimm's legal footnotes and of the law-related text of the Rimm article.(Catharine MacKinnon is also a possible candidate), and 2) That either Bruce Taylor, who continues to spearhead the attempts to pressure Congress into censoring the Internet, or Catharine MacKinnon, the controversial University of Michigan law professor is the Supreme Court obscenity litigator who served as a "referee" for Rimm. Confronted with the evidence that he received help from partisan forces in preparing his "neutral" study, Rimm has denied that Kaplan wrote the footnotes and that Taylor helped prepare the study in any way. The narrowness of Rimm's denials, however (he does not deny that someone else wrote the footnotes for him), implicitly suggests the truth of a more general claim -- that Rimm's study was in part crafted by individuals and groups inimical to pornography who hoped the Rimm study would serve as a platform for new legislation to censor the Net. At this writing, Prof. MacKinnon has denounced the Exon legislation and its clones as probably unconstitutional -- leaving the religious-right antiporn groups the prime suspects as accessories-before-the-fact in the Rimm caper. In contrast, Bruce Taylor has continued to lobby for passage of Exon-like legislation, painting himself and his organization as "moderates" on the issue. In the long run, one thing has become certain -- that the "problem" of pornography on the Net is essentially one that was constructed by Rimm and the antiporn activists, differing in agendas but united in their tactics. If Rimm's many academic frauds (false claims about his data, failure to seek informed consent, and the uncredited appropriating of others' work) were crimes, quite a few of the antiporn activists named above could easily be listed as unindicted coconspirators. The real crime, of course, is that, even though the Rimm study itself has been discredited, the larger fraud -- the antiporn groups' ongoing efforts to paint the Internet as vice den in dire need of Congressional action -- continues unabated. -------- SIDEBAR: THE OBSCENITY FOOTNOTE By Mike Godwin About 1000 words How much help did Martin Rimm receive in his legal footnotes and research, and who helped him? To get an idea of the assistance Marty had clearly received before his article was checked by the Georgetown Law Journal editors, take a look at Rimm's footnote dealing with the legal and constitutional status of obscenity and child pornography. The footnote appears as Footnote 2 in the Georgetown Law Journal article, but it is was Footnote 1 in the version of the article the law journal sent to Carlin Meyer in December of 1994. I have marked the differences between the earlier and later versions of the footnote in the following way: Material *deleted* from the first draft of the footnote is set off and bracketed with <>. Material *added to* the first draft of the footnoate (i.e., that appears in the final draft) is not set off, but appears in [[doubled square brackets]]. Here's the footnote: ------------------- The question of whether a sexually explicit image enjoys First Amendment protection is the subject of much controversy and reflects a fundamental tension in contemporary constitutional jurisprudence. While this article discusses only the content and consumption patterns of sexual imagery currently available on the Internet and "adult" BBS, the law enforcement and constitutional implications are obvious. Thus, it is necessary to briefly discuss the constitutional status of sexually explicit images. Obscene material does not enjoy First Amendment protection. See Roth v. United States, 354 U.S. 476 (1957) <<(opinion of Brennan, J.)>> ; Miller v. California, 413 U.S. 15 (1973). In Miller, the Supreme Court established the current tripartite definition for obscenity. <> In order to be obscene, and therefore outside the protection of the First Amendment, an image must (1) appeal to a prurient (i.e., unhealthy or shameful) interest in sexual activity, (2) depict real or simulated sexual conduct in [[a]] manner that, according to an average community member, offends contemporary community standards[[,]] and (3) according to [[a]] reasonable person, lack serious literary, artistic, political[[,]] or scientific value. Id. at 25-27; [[see also]] Pope v. Illinois, 481 U.S. 497, [[500-01]] (1987) [[(rejecting "ordinary member of given community" test, in favor of "reasonable person" standard for purposes of determining whether work at issue lacks literary, artistic, political, or scientific value)]]; Pinkus v. United States, 436 U.S. 293, [[298-301]] (1978) [[(excluding children from "community" for purpose of determining obscenity, but allowing inclusion of "sensitive persons" in the "community")]]; [[Ginzburg v. United States, 383 U.S. 463, 471-74 (1966) (allowing courts to examine circumstances of dissemination to determine existence of literary, artistic, political, or scientific value);]] see also United States v. Orito, 413 U.S. 139, [[143]] (1973) [[(holding that constitutionally protected zone of privacy for obscenity does not extend beyond the home)]] <> . To complicate matters, all adult pornographic material <> [[is initially]] presumed to be nonobscene. <> Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 62 (1989) <<.>> [[(requiring judicial determination of obscenity before taking publication out of circulation);]] <> Marcus v. Search Warrant, 367 U.S. 717, 730-31 (1961) [[(requiring procedures for seizure of obscenity which give police adequate guidance regarding the definition of obscenity to ensure no infringement on dissemination of constitutionally protected speech)]]. Accordingly, law enforcers and prosecutors attempting to pursue an obscenity investigation or prosecution face constitutionally mandated procedural obstacles not present in other criminal matters. See New York v. P.J. Videos, Inc., 475 U.S. 868 (1986). For instance, the so-called "plain view" exception to the Fourth Amendment warrant requirement, whereby contraband plainly visible to a law enforcement officer may be seized, does not apply to allegedly obscene material because, prior to a judicial determination, nothing is obscene and therefore, a fortiori, nothing be can be considered contraband. See Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325 (1979) [[(requiring that search warrants contain specific description of allegedly obscene items to be seized)]]. In addition to obscenity, one other type of sexually explicit material does not enjoy constitutional protection. In New York v. Ferber, 458 U.S. 747 (1982), the Supreme Court explicitly removed pornography depicting minors from the protective aegis of the First Amendment. That is, obscene or not, visual depictions of children engaged in sexual conduct are not constitutionally protected. Because the government interest <> identified [[by the Supreme Court]] as justifying removing child pornography from the protection of the First Amendment is more urgent than the government <> [[interest]] which <> [[justify]] denying protection to obscenity, and because the child pornography standard is far less vague than the obscenity standard, law enforcers and prosecutors are not bound by any unique procedural burdens here. See United States v. Weigand, 812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S. 856 (1987). In sum, the constitutional regime that the Supreme Court has established for pornography creates two distinct categories of sexually explicit imagery <> [[that]] are not protected by the First Amendment. While ascertaining whether a particular digital image contains a minor is not [[a]] Herculean labor, ascertaining whether a particular digital image is obscene in the abstract is well-neigh [sic] impossible. Accordingly, <> [[the research team]] will not attempt to pass on the question of obscenity as it applies to the digital images that are the subject of this <
> [[article]]. --------- Two things are immediately clear to anyone accustomed to reading law-review articles. The first is that Marty's footnote was scarcely edited at all by the law-journal editors -- it was published in much the same form as it appears in the December draft. The second is that Marty's handling of legal citation form is amazingly good for someone who, supposedly, doesn't have a lawyer on his research team. It is this more than anything that makes clear that Marty had assistance from someone who wanted to make his legal scholarship look good enough for a law journal. (Interestingly, the "well-neigh" malapropism appears in both early and late versions of the Rimm paper.) Finally, I suspect the transmutation of "this Author" to "the research team" came at Marty's suggestion, and not the law-review editors'.